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Elliott & Elliott Blog

Sometimes it is the simply things that are done without too my thought that attractive discipline. I am sure when Vernon Martin was running late and he provided the lockbox number to his clients to access the property for the showing. Mr. Martin had originally intended to meet his clients [...]

A review of RECO discipline decisions would lead one to believe there is no limit to how much diligence is expected of agents to satisfy their professional obligations. A decision from last year against a Barrie Agent brings this issue to the forefront and should be reviewed and understood by [...]

According to the recent Superior Court decision in T.L. Willaert Realty Ltd. V. Fody, if someone signs a listing agreement, depending on the contents of the agreement and regardless of whether the property sell’s or not, the listing party can still be liable for payment of the commission. In 2008, Richard Fody [...]

The case of Wemyss v. Moldenhauer makes it very clear that real estate agents owe a reasonable duty of care to their client(s). In this case the agent failed to recognize and bring to the attention of his client an amendment in the Agreement of Purchase and Sale that was stressed [...]

HOW TO AVOID A SHORTFALL What is a Writ? A writ of execution is a court order granted to enforce a judgement obtained by a plaintiff from a court. If the judgement debtor owns real property, the judgement creditor can record the execution to “freeze” the title until the execution [...]

You may have heard the phrase ‘covenant for quiet enjoyment’ referring to a lease between a landlord & tenant. To most people’s surprise, this does not refer explicitly to noise. More specifically, this covenant or promise is in place to allow the tenant to use the premises in a way [...]

Canada’s Anti-Spam Legislation: The Basics Most of the provisions of Canada’s new Anti-Spam legislation will come into force on July 1, 2014 & the sections that relate to computer programs & software will come into force on January 15, 2015. SCOPE OF THE LAW Any person, business or organization that [...]

According to the case of 11 Suntract Holdings Ltd. v. Classics Service & Hydraulics Ltd., a real estate agent has a duty to act with reasonable care and skill in reviewing the terms of a purchase agreement with his client. That duty includes obligations to specifically draw to the client’s attention, [...]

Are Repairs Required to be Completed Prior to Closing? Were they? If you are representing a buyer and repairs must be made to the home how do you outline this in the agreement to ensure that it is completed to your client’s satisfaction? The case of Rosenhek v. Breda touched [...]

CAVEAT EMPTOR: LET THE BUYER BEWARE “Caveat emptor, qui ignorae non debuit quod jus alienum emit” “Let a purchaser, who ought not to be ignorant of the amount and nature of the interest, exercise proper caution” INTRODUCTION Caveat Emptor is a Latin maxim which is defined by Merriam-Webster’s dictionary as [...]

NOTICE OF FULFILLMENT vs. WAIVER: What to Use & When to Use it INTRODUCTION There is a common practice when it comes to real estate conveyancing matters that it is irrelevant whether one chooses to use a Waiver as opposed to a Notice of Fulfillment when completing a transaction. This [...]

Home Inspection Reveals Issues? Be Sure to Disclose This to Potential Purchasers… As a real estate agent it is advisable that you inform potential purchasers if a previous home inspection had been conducted on the property which revealed defects. Also be sure to disclose ALL defects which were identified, and [...]

Can I install a pool, fence etc…? Can you imagine how your purchaser would feel if they had a firm deal on a property and when they were signing up with their lawyer they were informed about restrictive covenants registered on the title? It is too late to back out [...]

September is always a good time to reflect on the transactions over the summer to see what trends there are that caused issues with closing and how to learn from them. PRIVATE WATER – WHAT HAPPENS WHEN THE WELL GOES DRY? This summer so far I have been notified by [...]

When listing your property for sale you will often receive an offer that is conditional upon the buyer satisfying certain conditions before the deal becomes firm and binding. As a seller, this means that while you have accepted an offer, you do not yet have a firm and binding offer. [...]

In Ontario, the land registration system shuts down at 5:00 p.m. and lawyers involved in real estate transactions are responsible for making sure that this deadline is met, or otherwise, the deal must be closed “in escrow”. Closing in escrow means that the lawyers involved in the transaction have made [...]

This handout is meant to address the relevant legislation and action that can be taken in order to resolve disputes relating to boundary fences. The Line Fences Act, R.S.O. 1990 is the legislation that is applicable and it can be accessed by clicking here. This Act stipulates in section three that an [...]

While trees add beauty and character to neighbourhoods, they can also cause tension between neighbours, particularly where they grow across property lines. This raises many questions: When must I cut my trees? As a tree owner, if a dead or dying branch or tree is in the location where it [...]

Recently I encountered two files in my office where after the closing date the well had gone dry within a month. This caused me to question what more the agents should be doing to protect their purchaser when a property has a private water well. I have determined there are [...]

As a real estate agent it is important to understand, on behalf of your clients, what information they require for their lender to properly assist them. Recently I was reviewing the solicitor instructions that are provided to me by one of the many institutions that regularly fund mortgages for my [...]

In a recent decision out of the Ontario Superior Court of Justice, a condominium unit owner was awarded the sum of $59,825.78 to be paid by the condominium corporation as a result of their failure to satisfy their duty to ensure that unit owners complied with the by-laws and rules. [...]

Real estate agents and clients are aware that when you purchase a condo it is customary to request and review the status certificate. While this part is well known, it is surprising how few agents have ever actually reviewed a status certificate. The content in the status certificate is governed [...]

Client identification has been an important aspect of every real estate transaction in recent years. Each party involved in a real estate transaction from the realtor to the lender to the lawyer have legislation requirements to fulfill with regards to verifying the client/ customer’s identity. Agent Requirements: As a real [...]

An agreement of purchase and sale can be executed “in trust” by one individual on behalf of another. However, simply inserting the words “in trust” into the agreement, without including any sort of clause or provision, is not sufficient enough to remove personal liability for the trustee who signs the [...]

Municipalities exhaled a sigh of relief when the Ontario Court of Appeal overturned the January 2011 decision of the Superior Court of Justice in the case Biskey v. Chatham-Kent (Municipality) on November 21, 2012. This case involved a couple (the Biskey’s) who were determined to build their dream-home on a [...]

Sometimes situations are encountered in real estate transactions where clients are unavailable to sign the required legal documentation. A recent question was posed by an agent in relation to whether or not a real estate agent would be authorized to sign an offer on behalf of a purchaser if they [...]

What is a Writ? A writ of execution is a court order or other statutory authority that permits a creditor to instruct a sheriff to seize and sell assets/property of a debtor to satisfy an unpaid judgment. The act of filing a writ of execution (Writ) is the first step [...]

In the May 28, 2012 decision of The Corporation of the City of Kawartha Lakes v. Director, Ministry of the Environment, the Divisional Court affirmed the Environmental Review Tribunal (“ERT”) November, 2009 decision. You can access an article we wrote on this decision which was published in the March 2013 [...]

Are Electronic Signatures Legal on Land Transfer Agreements in Ontario? In Ontario, real estate transactions, specifically agreements of purchase and sale, are deliberately exempted from the protections of the Electronic Commerce Act 2000, S.O. 2000, c. 17 (ECA). This is currently under review by way of Private Members Bill 28 [...]

Spousal consent is required when you are listing a matrimonial home. Sounds easy enough, however, you need to know what is considered a matrimonial home to ensure you have the consent of both spouses for every step of this transaction. The definition for the matrimonial home comes from the Family [...]

First ingredient is water. You cannot make your own Kool-Aid if you do not have potable water. The other thing you cannot do without potable water is purchase a home if you require a mortgage. For agents who are assisting clients with property that are in a rural area there [...]

The Ontario Onsite Wastewater Association noted in their publication Septic Smart that investigators in Ontario estimate that 30 per cent of the one million household septic systems installed are failing to adequately protect the environment. When a change must be made to a septic system, such as repairs, replacements or [...]

What is expropriation? Expropriation is the compulsory taking of your property by an Expropriating Authority. It is a right granted through federal or provincial statutes to authorities such as governments, universities, or public utilities. It involves situations where privately owned land is needed for public projects such as the building [...]

You may be wondering why social media is becoming important and whether or not it is worth the time and effort to create and maintain these various profiles. In today’s increasingly online society, it is becoming more and more important to start marketing yourself with social media websites such as [...]

What is a Backup Offer? A backup offer is the term used to refer to an offer that is submitted to a seller after the seller has already accepted an offer. The first offer that is submitted to and accepted by the seller becomes the primary contract in a real [...]

Over the past three years a Canadian company known as Home Verified has created a comprehensive home history report that provides important information for the various parties involved in a real estate transaction. This report is available for homes located in major municipalities across the country and can be purchased [...]

Standard in most Agreements of Purchase and Sale is the following provision: The Seller represents and warrants that the chattels and fixtures as included in this Agreement of Purchase and Sale will be in good working order and free from all liens and encumbrances on completion. The Parties agree that [...]

Sometimes situations are encountered where clients are away at the time of closing a real estate transaction, and therefore, unable to sign the legal documentation. In these situations, one way to ensure that the transaction closes on time is by using a Power of Attorney (POA). However, a few years [...]

As a real estate agent you are subject to abide by certain legislation and regulations with respect to confirming your client/customers identity and personal identification information. Since June 23, 2008, real estate agents have been required to collect personal identification information from buyers and sellers, and to complete a report [...]

An Agreement of Purchase and Sale is the foundation for every real estate transaction and is one of the most important legal documents many individuals will ever sign. Once an Agreement of Purchase and Sale is signed and all conditions have been fulfilled or waived, it becomes a binding contract [...]

I was informed by one of my clients that they were not concerned with waiving the condition inserted in an offer to purchase that they sell their property first, because their lender informed them they were only risking their deposit. They deposited $1,000.00 with this in mind. It is important [...]

I am often contacted by agents to report that the purchasers have already used all their rights to attend at the property set out in the agreement and now they are asking to come in again. The first inclination is to say NO. This issue has been firmly settled by [...]

The Home Ownership Program is offered by the County of Simcoe and is aimed at assisting the “low-to-moderate income renter” to purchase a new home by way of providing a 10 percent down payment in the form of a “forgivable loan”. Although the loan is forgivable, there are certain conditions [...]

Typically every residential real estate sale agreement contains a clause concerning urea formaldehyde foam insulation (UFFI). This clause warrants that the vendor has never caused the house to be insulated with UFFI and to the best of the vendor’s knowledge the house does not contain UFFI. First I will set [...]

I am often asked what my opinion is on whether Seller Property Information Statements (SPIS) should be used in a real estate transaction. This question has become more common in the past few years after recent court decisions where real estate agents were held to have not discharged their obligation [...]

I have been asked on more than one occasion by real estate agents if they can withdraw an offer after it has been submitted and prior to the irrevocable date and time. I think the misunderstanding around this comes from the fact that in regular contract negotiations after an offer [...]

A new trend which is becoming more common in residential purchase agreements is for purchasers not to automatically agree to assume the hot water tank rental. It is the owner who has entered into the rental agreement and in many cases the terms are not attractive. As a purchaser you [...]

The Lawyer’s Weekly has published our article in the December 21, 2012 issue on disclosure obligations of real estate agents, specifically in relation to murder and burial plots. You can access the Lawyer’s Weekly article entitled “Three bed, two bath…one undisclosed crime: Scarcity of law and regulation over stigmatized properties” [...]

Check out the Advocate Daily Post in relation to our November 2012 Newsletter by clicking here. This newsletter focuses on some commonly asked questions related to the agreement of purchase and sale. The first article deals with agreements that are conditional upon lawyer approval, which provides both parties with the [...]

The contents of this article were obtained directly from an article posted on Advocate Daily’s Website which can be accessed by clicking here. The definition of “material fact” in the Real Estate and Business Brokers Act’s Code of Ethics regulation should be amended to add clarity, says Barrie real estate [...]

This article was originally posted on Advocate Daily’s Website which can be accessed by clicking here. The priority for landlords in disputes with their tenants is to protect their property, Barrie real estate lawyer Shari Elliott tells Law Times. You can read the Law Times Article by clicking here. “What [...]

On March 16, 2012, the Ontario Court of Appeal released an important decision pertaining to the definition of an “adverse effect” under the EPA. The case, Ontario (Environment) v. Castonguay Blasting LTD, involved a situation in which the defendant (Castonguay) was charged with a violation under the EPA because of [...]

As a real estate agent in Ontario it is important to understand the various statutes and regulations that are applicable to the way in which you advertise your services. The Real Estate Committee of Ontario (RECO) has published various documents on advertising guidelines which contain important information on the minimum [...]

1. Surveys Some examples of clauses that are commonly used which can create problems include: “Vendor will provide a survey”. This is assuming the vendor has the original survey to provide. If not, the purchaser can insist on one being obtained costs approx. $600.00 to $900.00 for a simple residential [...]

This blog is intended to increase awareness about the Home Ownership Program that is provided by the Social Housing Department of the County of Simcoe. This week I have encountered my first purchase in which the purchasers are already taking advantage of this program. It aims to assist those individuals [...]

It is important to insert a clause into your agreement of purchase and sale for a property that contains a tenant. This is true even when it appears the tenant is leaving before the closing date. As can be seen in the recent decision D’Amico v. Hitti, 2012 ONSC 4467 [...]

There are two common ways to take title to property when two or more people are involved in the transaction. They include Joint Tenancy and Tenancy in Common. 1. Joint tenancy involves ownership by two or more persons of the same property, all of whom hold title to the property [...]

In situations where one of the owners involved with a joint tenancy or tenancy in common relationship would like to sell their share of the property, and the other owners do not, there are different options available to the individual to terminate their interest in the property. When title is [...]

Imagine having your property contaminated by your neighbour THEN being ordered by the Ministry to clean it up! Can it happen? Absolutely. In the May 28, 2012 decision of The Corporation of the City of Kawartha Lakes v. Director, Ministry of the Environment, the Divisional Court affirmed the Environmental Review [...]

In a file that I recently encountered I made a suggestion for an amendment to the agreement of purchase and sale due to the fact that there was a tenant at the property in question. If you are making an offer on a property that has a tenant, even if [...]

What is the Home Buyers’ Tax Credit (HBTC)? The HBTC was introduced in Canada’s Economic Action Plan in 2009 to help first-time home buyers pay the costs that are associated with buying a home. These costs include things such as legal fees, disbursements, and land transfer taxes. The HBTC is [...]

The Home Buyers’ Plan is a plan that allows a home buyer to withdraw funds from most registered retirement savings plans (RRSPs) in order to buy or build a qualifying home either for you, or a relative that has a disability. Some RRSPs that do not allow any withdrawals to [...]

When an individual is purchasing their first home, they are eligible for a Land Transfer Tax Credit (LTTC) which is a refund of the cost of land transfer tax in the province in which the property is being purchased. The rebate is available regardless of the purchase price but only [...]

A recent story about a property owner in Woodbridge, Sydney Walters, highlights the importance of a home inspection. But even more than the need for a home inspection, the need to have a qualified competent home inspector is key. Read the Toronto Star story by clicking here. This story talks [...]

Check out a recent story posted on Advocate Daily and published in Law Times Magazine which discusses the main legal issue in a case involving the use of seller information forms, which is the principle of caveat emptor. You can read this full article by clicking here. If you have [...]

In real estate transactions the deal is closed and the transaction is completed once the money and documentation have been exchanged and the Transfer registered. However, certain warranties and representations can ‘survive’ the closing of the deal, if it is outlined in the contract as such. For example, a common [...]

In order to understand the use of the terms “representations” and “warranties” we need to begin with a definition of each. A representation is “a statement of fact made to induce another to enter into a contract”. One party provides information to the other at the time the contract is [...]

If your purchaser wants to move in, the landlord can provide notice to the tenant if the purchaser legitimately intends to use the property as his or her own residence; or for the use of their spouse, same-sex partner, child, parent, or in-law. The applicable legislation that outlines the processes [...]

Vendors often think they have a survey, but what they produce is only a photocopy of part of the registered plan of subdivision showing no buildings. Prior to drafting the agreement of purchase and sale it is important to determine whether or not the vendor does in fact have a [...]

The Federal Government has once again acted through regulatory changes to force Canadians to lower their debt levels. On July 9th, 2012 the mortgage lending rules will be tightened once again in order to gain control of the rising household debt levels in Canada, which marks the third time in [...]

What should a purchaser do if vermiculite insulation is suspected to be present in the home? First you should ensure that your purchaser has a properly qualified home inspector who is aware of the concerns with vermiculite insulation. If a home inspection results in a determination that vermiculite insulation is [...]

The CRA offers a rulings and interpretation service in relation to taxes and duties on goods and services. This free service is called the Excise and GST/HST Rulings and Interpretation Service. This service issues technical publications, as well as both rulings and interpretations on taxes and duties. An interpretation is [...]

The answer is probably not; but maybe. The situations when the sale will be tax exempt include: if the vendor is an individual and the land was kept by that person for personal use, if the parcel is being created by subdividing another parcel and the vendor is an individual [...]

This is an interesting question because if one were to Google this question you would find many conflicting answers. I actually spent a couple of hours with 4 different representatives of the Canada Revenue Agency to determine the answer. The short answer is NO. The first reason that the sale [...]

What are Your Disclosure Obligations? The disclosure obligations of Real Estate Agents in Ontario are unclear for what are commonly referred to as stigmatized properties. But disclosure is clearly required for one category of stigmatized properties, that being homes that were used in a grow operation. The RECO website has [...]

I am often asked by real estate agents what do I have an obligation to disclose… murder, suicide, death…? If the property has been the location of a murder, suicide, sexual assault or death these events are considered stigmas. Depending on the facts of each case and your individual purchaser [...]

It is no surprise that Nortel is insolvent and seeking to restructure under the Companies’ Creditors Arrangement Act (“CCAA”). What is a surprise is the ruling this month of the Ontario Superior Court of Justice that the Ministry of Environment (“MOE”) Orders which require Nortel to perform environmental clean-up work [...]

It is just a fact of life that fuel oil tanks inherently leak. That is why there are standards imposed which govern not only the manufacture and installation of fuel oil tanks but the maintenance and removal. A reasonable person would assume if a fuel oil tank is new or [...]

It is important to turn your mind to whether a used residential property is subject to HST if that property is larger than a half hectare. Revenue Canada’s definition of a principal residence includes a limit on the land size to a half hectare. This is the amount of land [...]

I am often asked what my opinion is on whether Seller Property Information Statements (SPIS) should be used in a real estate transaction. This question has become more common in the past year, after recent court decisions where real estate agents were held to have not discharged their obligation to [...]

What is title insurance? When was it developed and why? What is covered? What should every purchaser, seller and real estate agent know about the disclosure obligations? I am often asked what title insurance is and why a purchaser should obtain it. Title insurance protects your ownership interest, or “title” [...]

There is no excuse today for real estate agents not to be aware that the environmental status of properties needs to be addressed in the purchase agreement. By becoming aware of the issues, real estate agents can avoid the discovery of unexpected environmental issues. Environmental liability is applied to a [...]